Black Cat White Cat Pty Ltd v Royal Park Services Pty Ltd No. Scciv-03-1413

[2004] SASC 71

BLACK CAT WHITE CAT PTY LTD v ROYAL PARK
SERVICES PTY LTD
[2004] SASC 71

1. JUDGE BURLEY.             The plaintiff has applied for an order setting aside a statutory demand.  The plaintiff alleges that the debt the subject of the demand is genuinely disputed by the plaintiff.

2. On the face of the papers, this application was not commenced within the relevant 21 day period.  The statutory demand was served on 20 September 2003 and these proceedings were commenced on 13 October 2003.  The question of whether or not the plaintiff is within the relevant 21 day period goes to the jurisdiction of the court to entertain the application.  The 21 day period cannot be extended: David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265.

3. The plaintiff contended that the computation of the statutory period of 21 days must, in the circumstances of this case, take into account Section 36(2) of the Acts Interpretation Act 1901 (Cth) which is as follows:

   “(2)Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.”

4. The calendar for 2003 reveals that 20 September 2003 was a Saturday.  The 21 day period expiring after 20 September 2003 ended on Sunday, 12 October 2003.  These proceedings were commenced on Monday, 13 October 2003. 

5. I accept the plaintiff’s submission that the relevant 21 day period must be calculated by reference to Section 36(2) of the Acts Interpretation Act.  I do not consider that anything said by the High Court in David Grant & Co indicates to the contrary.  Consequently, I hold that I have jurisdiction to entertain this application because it has been commenced within time.

6. A copy of the statutory demand is Exhibit P1.  In the statutory demand the defendant alleges that the plaintiff advanced certain monies to the defendant by way of loan.  These are set out at paragraph 4 in the affidavit accompanying the statutory demand as follows:

   “Date  Amount  Balance 

   17/10/2001                 $100,000  $100,000

   18/10/2001                 $  25,000                   $125,000
   21/11/2001                 $  25,000                   $150,000”

7. The plaintiff contended that the alleged debt was genuinely disputed by the plaintiff and no other ground for setting aside the statutory demand was relied upon.  The plaintiff relied upon the affidavit of Mira Djurdjevic, one of the directors of the plaintiff.  The affidavit was sworn on 13 October 2003 and filed with the originating process.  This was admitted into evidence.  The plaintiff also relied on the supplementary affidavit of Ms Djurdjevic sworn on 12 November 2003.  Objection was taken to the admission of that affidavit into evidence on the basis that the affidavit raised grounds in support of the application to set aside the statutory demand raised for the first time after the expiry of the relevant 21 day period.  I ruled that the affidavit was inadmissible because it either altered the factual basis upon which it was asserted that the claim was genuinely disputed or introduced, for the first time, the material facts upon which such a contention was based: D & S Group of Companies Pty Ltd v O’Connor Investments Pty Ltd and Ors (1997) 195 LSJS 213 at 219; (1997) 15 ACLC 1794.

8. The background to the parties’ dealings, according to the affidavit of Ms Djurdjevic, was that she, her former husband Savo Djurdjevic and Mr  Petar Jurkovic were old friends.  In around September 2001 Ms Djurdjevic and her former husband were approached by Mr Jurkovic in relation to a business venture.  The proposed business was to open and run a night club.  According to Ms Djurdjevic, Mr Jurkovic would supply the capital and she and her former husband would supply the expertise necessary to run such a business.  They first looked at premises on North Terrace Adelaide, with a view to obtaining a lease, but negotiations with the owner of the premises fell through.  They next looked at premises at Gouger Street Adelaide, and that proceeded to a stage where a lease was entered into and renovations were carried out to the premises at the expense of the plaintiff.  Approximately $150,000 was spent in the renovations and alterations to the leased property.  According to Mr Jurkovic, this money came from the defendant.

9. The plaintiff advanced two arguments in support of its contention that the debt was genuinely disputed.  In considering the plaintiff’s arguments I accept, as was submitted by the plaintiff, that I must determine that a dispute in fact exists;  in other words, the contentions of the plaintiff are not spurious, hypothetical, illusory or misconceived: Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 24 ACSR 353. I must be satisfied that the contentions of the plaintiff are plausible: Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785. However, the court, on an application such as this, does not consider the merits of the dispute: Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601. The court will not ordinarily embark upon an extended factual enquiry or weigh the merits of the alleged dispute: Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACSR 362 at 366-7.

10. The first argument advanced by the plaintiff was that, to the extent that the defendant advanced monies to the plaintiff, such advances represented the capital investment on the part of Mr Petar Jurkovic (not the defendant) whereby Mr Jurkovic was to acquire a one-third share in the plaintiff.  It was submitted by Mr Strawbridge, counsel for the defendant, that such a contention was completely implausible given that, at the time the payments were made, the plaintiff had no assets other than a lease of premises to which renovations were being made, the costs of which were borne either by Mr Jurkovic or the defendant or one of Mr Jurkovic’s companies.  This is particularly so, it was submitted, where the other two participants in the scheme undertaken by the plaintiff made no capital contribution at all. 

11. The second argument advanced by the plaintiff was that the defendant could not establish that the monies advanced to the plaintiff were advanced by the defendant.  Such a contention can only be based upon the affidavit of Ms Djurdjevic and, in my view, there is nothing in that affidavit that casts any doubt upon Mr Jurkovic’s statement, both in the affidavit supporting the statutory demand and in his affidavit filed in these proceedings, that the monies were advanced by the defendant.

12. As a result of this conclusion the only matter to be decided is whether or not the plaintiff has disclosed a genuine dispute based on the contention that the monies advanced by the defendant were in reality a capital contribution by Mr Jurkovic entitling him to his one-third shareholding  referred to in Exhibit PJ1 to the affidavit of Mr Jurkovic sworn on 13 January 2004.

13. In her affidavit, Ms Djurdjevic asserted that the agreement reached between the parties included agreement by Mr Jurkovic to the arrangement that money provided by him would be by way of capital contribution.  In other words, he was to pay for the allotment of one-third of the issued shares in the company by the payment of approximately $150,000.  Ms Djurdjevic did not descend into evidence to support this assertion.  Specifically she did not depose as to the conversations said to have given rise to such an agreement.  Consequently, what she has said in paragraph 5 of her affidavit sworn on 13 October 2003 is no more than an assertion on her part as to what she understood to be the effect of the arrangement agreed to by her, her former husband and Mr Jurkovic.  Mr Jurkovic, on the other hand, gave evidence of the conversations he had with Mrs Djurdjevic at paragraph 8 of his affidavit. 

14. The approach to be taken to a dispute of this nature has been dealt with by McLelland CJ in Eyota Pty Ltd v Hanave Pty Ltd, which was followed by Lehane J in Europecars Pty Ltd v Century International Ltd (1999) 30 ACSR 774 at 775-6. In Eyota, McLelland CJ said (at 787 line 10):

    “It is, however, necessary to consider the meaning of the expression ‘genuine dispute’ where it occurs in s 450H.  In my opinion that expression connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the ‘serious question to be tried’ criterion which arises on an application for an interlocutory injunction or for the extension or removal of a caveat.  This does not mean that the court must accept uncritically as giving rise to a genuine dispute, every statement in an affidavit ‘however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be’ not having ‘sufficient prima facie plausibility to merit further investigation as to [its] truth’ (cf Eng Mee Yong v Letchumanan [1980] AC 331 at 341) ...

    But it does mean that, except in such an extreme case, a court required to determine whether there is a genuine dispute should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on as giving rise to the dispute.  There is a clear difference between, on the one hand, determining whether there is a genuine dispute and, on the other hand, determining the merits of, or resolving, such a dispute.”

15. In Europecars Pty Ltd, Lehane J (at 775 et seq) referred to Eyota and repeated the reasoning of McLelland CJ.  In that case Lehane J dealt with the situation where an assertion on the part of the plaintiff was met by evidence on the part of the defendant.  His Honour concluded that the evidence of the defendant must prevail over the assertions of the plaintiff.  In so doing, his Honour did not make a finding as to credibility, but merely recognised the superior force of evidence over assertion.

16. That is the approach which I consider to be taken to the matter before me.  The plaintiff has made assertions as to the nature of the arrangement between herself, her former husband and Mr Jurkovic.  That arrangement appears to be highly favourable to the deponent and her former husband so that the plausibility of the assertion is called into question.  Mr Jurkovic has given evidence about the conversations that he had with Mrs Djurdjevic which are clearly to the effect that the monetary contributions made by the defendant were not capital contributions made on behalf of Mr Jurkovic but, rather, constituted a loan by the defendant to the plaintiff.  In those circumstances it cannot be said that the plaintiff has established that the debt the subject of the statutory demand is genuinely disputed by the plaintiff.

17. For the above reasons, the application by the plaintiff will be dismissed.  I will hear the parties as to costs.